Appeal No. 2001-0323 Page 6
Application No. 09/159,360
The first paragraph of 35 U.S.C. § 251 provides:
Whenever any patent is, through error without any
deceptive intention, deemed wholly or partly inoperative
or invalid, by reason of a defective specification or
drawing, or by reason of the patentee claiming more or
less than he had a right to claim in the patent, the
Director shall, on the surrender of such patent and the
payment of the fee required by law, reissue the patent
for the invention disclosed in the original patent, and
in accordance with a new and amended application, for the
unexpired part of the term of the original patent. No new
matter shall be introduced into the application for
reissue.
The fourth paragraph of 35 U.S.C. § 251 provides:
No reissued patent shall be granted enlarging the
scope of the claims of the original patent unless applied
for within two years from the grant of the original
patent.
We find ourselves in agreement with the appellants
position set forth in their briefs that the examiner's
rejection of claims 2 to 11 and 13 to 24 under 35 U.S.C. § 251
is unsound. First, it is our determination that the reissue
application complies with the fourth paragraph of 35 U.S.C. §
251 since the reissue application was applied for within two
years from the grant of the original patent. In our view, the
phrase "original patent" as used in the fourth paragraph of 35
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